400 college professors say you should be able to sue Equifax and other financial institutions

By Maria LaMagna

Published: Sep 25, 2017 2:54 pm ET

The professors sent a letter to senators protesting mandatory arbitration clauses

The Equifax breach was an example of why consumers should be able to sue companies, some consumer advocates said.

A group of college professors is rallying in support of consumers’ right to sue.

Some 423 law school, university and college professors are sending a letter to two senators, encouraging them to support a rule the Consumer Financial Protection Bureau has passed.

The CFPB announced a final version of the rule in July that would ban companies from putting “mandatory arbitration clauses” in their contracts, language that prohibits consumers from bringing class-action suits against them. It applies to institutions that sell financial products, including bank accounts and credit cards.

“Class action lawsuits are an important means of protecting consumers harmed by violations of federal or state law,” the letter says. “Class actions enable a court to see that a company’s violations are widespread and to order appropriate relief.”

The CFPB’s mandatory arbitration rule was in the news recently in the aftermath of a security breach at credit reporting agency Equifax
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, when consumer advocates said that breach showed why suing financial institutions can be important. After the breach, consumers filed numerous class-action suits against Equifax.

The professors are sending the letter Monday because it is Sept. 25, the anniversary of when Congress passed the Seventh Amendment to the U.S. Constitution in 1791, which states: “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.”

“The right of access to the courts was so important to our founders that they enshrined the right to a jury trial in both the Sixth and Seventh Amendments,” said Imre Szalai, a professor at Loyola University New Orleans College of Law, in a statement.

Critics of the CFPB rule have said class-action suits actually don’t help consumers. Many of the critics are Republicans, who have opposed the bureau, saying it is too powerful. The professors are sending their letter to one Republican, Senator Mike Crapo of Idaho, who is the chair of the Senate Committee on Banking, Housing and Urban Affairs, and one Democrat, Senator Sherrod Brown of Ohio, who is a member of that committee.

The House’s vote against the rule was “critical to ensuring the bureau doesn’t provide trial lawyers with a regulatory windfall at consumers’ expense,” said Rob Nichols, the president and CEO of the trade group American Bankers Association, in a previous statement.

“Members of the House took a much-needed step toward checking the power of a rogue agency and its attempt to impose a bad rule on American consumers,” said Lisa Rickard, the president of the U.S. Chamber Institute for Legal Reform and David Hirschman, the president and CEO of the U.S. Chamber Center for Capital Markets Competitiveness, in a joint statement after the vote. Both are part of the U.S. Chamber of Commerce.

“Our arbitration rule was the result of more than five years of careful research and open deliberation,” said David Mayorga, a CFPB spokesman. “We found that blocking group lawsuits makes it nearly impossible for most consumers to get justice and relief for wrongdoing.”

Professors who are sending the letter include Creola Johnson, a professor at the Ohio State University Moritz College of Law, David Cluchey, a professor of law emeritus at the University of Maine School of Law in Portland and Jean Sternlight, a professor of law at the University of Nevada, Las Vegas Boyd School of Law.